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06/27/2013

In their post-loss spin, the far-right crowd is impugn the motives and actions of CA Gov. Jerry Brown, past Gov. Arnold Scharzenegger, Attorney General Kamala Harris, and others who refused to defend Prop 8 in court. Here's the suddenly omnipresent Ryan T. Anderson writing on NYTimes.com:

It is scandalous that those state officials refused to perform their duty. That abdication of their responsibility should not have prevented a vigorous defense in court. This outcome sets a disturbing precedent and distorts the balance of powers among the legislative, executive, and judicial branches. It would allow the executive branch to effectively veto duly enacted laws, simply by refusing to defend it against a constitutional challenge. [NYT]

Only thing? I've been doing this long enough to remember a very different tale. Specifically, I remember back in 2009, when groups like Focus on the Family, the Alliance Defending Freedom (the force behind the Prop 8 action), and local state affiliate leaders were heaping massive praise on Wisconsin's Attorney General for acting in the same way. Here's just one report from that time, via Focus on the Family's Citizenlink:

A decision not to defend a bad law is good news for marriage supporters in Wisconsin.

Attorney General J.B. Van Hollen — who ordinarily would defend a duly-enacted law — announced Friday he will not defend the state’s domestic-partner law from a legal challenge brought by a pro-family group.

Under that law, which passed the Legislature and was signed by Gov. Jim Doyle earlier this year, same-sex couples began applying for domestic-partnership recognition this month. Wisconsin Family Action has asked that the registry be declared unconstitutional under the 2006 amendment that defined marriage as the union of one man and one woman.
...
Jim Campbell, legal counsel for ADF, said he hopes the Wisconsin Supreme Court takes note of Van Hollen’s position.

“We believe that it’s very clear here. The people of Wisconsin said that they do not want the government creating anything that is substantially similar to marriage, and that is exactly what they’ve done here,” he said.

Campbell would like to see the state’s high court strike down the law.

Now, people like Ryan Anderson would probably say the breakaway is that Prop 8 was passed "by the people" and the law Van Hollen refused to defend was an act of legislative government. But that is a distinction without a real difference. "The people" elected the legislature and the Governor for the purpose of passing and enacting law, which is what they did with the domestic partner registry. That's how we do it here in America.

The fact of the matter is that Mr. Van Hollen personally resisted the domestic partnerships and so he said that could not and would not defend a law that he saw as in violation of his state's amended constitution—and the "pro-family" crowd cheered because they agreed with his view. Period. They liked this course of action when it was of benefit and they hate this course of action when it (a) is non-beneficial and (b) ably highlights that the discriminatory laws they cherish truly are unable to hold up under constitutional scrutiny.